Who’s afraid of the court de-liberalization?

In a neoliberal economy, such as Israel’s, the market prefers a court that is more liberal than conservative.

Ayelet Shaked March 18, 2019 (Courtesy) (photo credit: Courtesy)
Ayelet Shaked March 18, 2019 (Courtesy)
(photo credit: Courtesy)
Last month, just a few days before the upcoming national elections, morning newspaper readers encountered a rare sponsored ad: an opinion letter signed by 81 senior attorneys and top-tier law firm heads, protesting against politicians who threaten to reform the Israeli court system. Shortly after the elections, four of the top lawyers in Israel – Relly Leshem, Alex Hartman, Giora Erdinast and Robbi Bachar, who usually represent Fortune 500 companies – gave an exclusive interview to Globes newspaper. Similar to the ad, the four expressed their deep concern of the future Minister of Justice reforms. This act symbolizes the reluctance of the free market from politicians who proclaim to eradicate the independence of the Israeli court system.
In a neoliberal economy, such as Israel’s, the market prefers a court that is more liberal than conservative. A liberal and independent court protects businesses from arbitrary government decisions when doing business with the state. A liberal and independent court removes redundant regulation by the state in places where it is unnecessary. It also provides confidence to foreign investors who try to penetrate the domestic market, because the court can prevent the state from prioritizing uncompetitive local businesses. 
The current legal status quo is one reason, out of many others, why the Israeli economy is booming. Unsurprisingly, the attorneys who represent the major conglomerates and multinationals are rightly wary of an explicit attack on the liberalism of the court. The large corporations have a great interest in keeping the court free from the intervention of politicians, because it protects them from the state imposing restrictive legislation and allows market forces to operate freely.
The term of Justice Minister Ayelet Shaked revolved around reforming the Supreme Court’s agenda by the appointment of conservative justices. Now, two of the prominent final candidates to replace her in the next government, MKs Yariv Levin and Bezalel Smotrich, present an even more radical approach toward the court than Shaked’s. Both expressed interest in rebalancing the relationship between the legislative, executive and judicial branches by limiting the Supreme Court’s power to revoke the Knesset’s bills and executive decisions by judicial review. 
While things are said mainly due to the court’s intervention in state and religion matters, the MKs forget that these reforms also have far-reaching implications on the economy. Ironically, a radical judicial reform contradicts the right-wing government’s neoliberal economic approach of the last two decades.
The emergence of the influential lawyers’ guild against the politicians is a game changer. So far, senior lawyers have refrained from making their voices heard on this matter. However, when the battering of the judicial system is heavy and insistent, the jeopardy to their clients’ pockets becomes more tangible. Thus, they are most likely to intervene more in the dispute over the identity of the court system – whether it will be a liberal or conservative one. 
Undoubtedly, there is a new order in the triangle between politicians, judges and lawyers, which gives the judicial system a strong tailwind due to the concerns of hazards to doing business in Israel. The next term of government could provide us with more interesting developments on this controversial subject.
The writer is a fourth-year student in the joint program for Law and Government in the Harry Radzyner Law School at IDC Herzliya, and a fellow in the Argov Fellows Program in Leadership and Diplomacy.


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